Com. v. McCloskey

• Citation: 441 Pa.Super. 116,656 A.2d 1369
• Parties: COMMONWEALTH of Pennsylvania, v. Gavin McCLOSKEY, Appellant.
• Decision Date: 30 March 1995
• Court: Pennsylvania Superior Court

Page 1369

656 A.2d 1369

441 Pa.Super. 116

COMMONWEALTH of Pennsylvania, v. Gavin McCLOSKEY, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 5, 1994.

Filed March 30, 1995.

Patrick J. Connors, Asst. Public Defender, Media, for appellant.

Louis G. Stesis, Asst. Dist. Atty., Media, for Com., appellee.

Before ROWLEY, President Judge, and KELLY and CERCONE, JJ.

ROWLEY, President Judge:

Appellant Gavin McCloskey was convicted after trial by jury of voluntary manslaughter and recklessly endangering another person. He appeals the judgment of sentence, alleging that the trial court erred in 1) not suppressing inculpatory statements made before appellant was given Miranda warnings, 2) failing to declare a mistrial for statements made by the Commonwealth during its closing argument, and 3) refusing to include the offense of involuntary manslaughter on the verdict slip after several times charging the jury on the elements of the crime. Because we find merit to appellant's final claim of error, we vacate the judgment of sentence for voluntary manslaughter and remand for a new trial.

With respect to appellant's first claim, that the trial court should have suppressed statements he made to police prior to receiving Miranda warnings, we are limited to a review of the record for support for the trial court's factual findings and the propriety of legal conclusions drawn therefrom, considering only evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted. Commonwealth v. Daniels, 404 Pa.Super. 272, 590 A.2d 778 (1991). Our review discloses ample support for the trial court's factual findings, and the absence of legal error in concluding that the statements appellant made were admissible.

Shortly before 1:00 A.M. on March 17, 1993, an officer of the Glenolden Police Department responded to a radio call that a shooting had just occurred within a block or two of his patrol location. When the officer arrived on the scene, he encountered a man in the driveway who advised him that his cousin had been shot, and was still upstairs. As the officer entered the apartment building, he bumped into appellant immediately inside the outer door to the front hall and asked, "What's going on?" When appellant responded, "I am the shooter," the officer asked who was shot. Appellant answered, "Walt was shot; he's an off-duty cop; he's upstairs; he came banging on my door over a parking space we had been fighting over; he scared me and I shot him." Order (Cronin, J.), 7/23/93, at 2. The officer placed appellant in custody, turned him over to officers arriving on the scene, and asked them to put appellant in their car. Appellant made no further statements, and was later transported to the police station.

Appellant contends that anything he said after "I am the shooter" should have been suppressed due to the officer's failure to inform him of his Miranda rights. A review of the record, however, supports the trial court's factual findings that appellant was not in custody as he encountered the officer, and that the questions the officer directed to appellant were of a general, investigative nature, designed to verify the identity and number of possible victims. Appellant could have said nothing, or stopped after stating, "Walt," in response to the officer's question, "Who was shot?" Instead, appellant provided additional details. There is no support in the record for a finding other than that appellant's responses to the officer's investigatory questions were spontaneously uttered, not the product of custodial interrogation, and not "calculated to, expected to, or likely to evoke admission." Daniels, 404 Pa.Super. at 279, 590 A.2d at 781, quoting Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969). Appellant's motion to suppress his statements was properly denied.

With respect to appellant's claim that the trial court erred in omitting the charge of involuntary manslaughter from the verdict slip, there is no longer a question under the law of this Commonwealth that if the evidence in a homicide trial supports a verdict of involuntary manslaughter, the offense is "an issue in the case, and a charge on involuntary manslaughter must be given if requested." Commonwealth v. Draxinger, 345 Pa.Super. 554, 558, 498 A.2d 963, 965 (1985); Commonwealth v. Williams, 537 Pa. 1, 30, 640 A.2d 1251, 1265-66 (1994) ("mercy charge" on involuntary manslaughter in homicide trial, formerly required under Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), now limited by Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980), to cases in which evidence supports such a verdict). Stated as a three-part inquiry, we look to see, first, whether appellant made a timely request for an instruction on involuntary manslaughter, second, whether the offense was made an issue in the case, and finally, whether the evidence at trial could support a verdict of involuntary manslaughter. ¹ Commonwealth v. Rogers, 419 Pa.Super. 122, 135, 615 A.2d 55, 61 (1992).

Appellant was clearly charged with involuntary manslaughter, and the jury was so informed; the trial court briefly outlined the elements of the offense for the jury prior to the Commonwealth's presentation of its case. N.T., 9/15/93, at 35, 38. And there is no dispute that appellant made a timely request for an instruction on involuntary manslaughter.

At the close of its evidence, the Commonwealth notified the trial court and defense counsel that it would withdraw three of the original charges against appellant, including involuntary manslaughter. Defense counsel responded that he would nonetheless request an involuntary manslaughter instruction. The Commonwealth then withdrew its withdrawal of the charge and requested the trial court to "leave Involuntary Manslaughter in." N.T., 9/16/93, at 30. ²

At the close of evidence for the defense and prior to closing arguments, however, the trial court permitted the Commonwealth to withdraw the charge of involuntary manslaughter:

MR. LYNCH: Your Honor, I had indicated earlier to the Court that it is the Commonwealth's intention to withdraw the charge of Involuntary Manslaughter, albeit the Court has initially told the jury that the Defendant is charged with that, I feel the only comment I would make, and I think it is a fair comment, sir, is that although the Court is going to charge Involuntary Manslaughter, the Commonwealth does not believe it is in this case and we have withdrawn that charge, and I don't have to make any more comment than that, sir.[ ]

MR. DIMATTEO: Your Honor, I think it is in this case, and I'm going to ask the Court [to] charge on it because [the jury] could find the Defendant acted recklessly.

MR. LYNCH: Your Honor, I agree that Mr. DiMatteo is entitled to [the] charge, I think I'm entitled to say what I just said and nothing more.

THE COURT: All right. You're in agreement to say that the Defendant is entitled to a charge, the effect that he directly caused the death of another person by reckless or grossly negligent conduct?

MR. LYNCH: Yes, sir, I am. It's my understanding of the law that since that is his defense,[ ³] sir, that he is entitled to that, and I can't deprive him of it if he requests the Court to make that charge. I'm not joining with him in that request, sir, by any way, shape, manner or form.

* * * * * *

THE COURT: All right. The Commonwealth will prepare to withdraw their charge of Involuntary Manslaughter. I will instruct the jury on the charges of Involuntary Manslaughter.

Id., 9/17/93, at 3-5 (emphasis and footnote added). The pivotal question for our review, then, is whether the evidence at trial would have reasonably supported a verdict of involuntary manslaughter. If it would not, and the Commonwealth's request to withdraw involuntary manslaughter was based upon its belief that the offense was not "in this case[,]" N.T., 9/17/93, at 4, the trial court erred and appellant was not entitled to the instruction in any event, for "it has long been the rule in this Commonwealth that a trial court should not instruct the jury on legal principles which have no application to the facts presented at trial." White, 490 Pa. at 182, 415 A.2d at 400. Moreover, "[t]o charge a jury on extraneous offenses in homicide trials is inapposite and detrimental to the sound administration of justice." Id., at 184, 415 A.2d at 401. It was the duty of the trial court to determine, as a matter of law, whether the evidence supported an involuntary manslaughter instruction. If it did, appellant was entitled to be found guilty or innocent of the charge.

The evidence at trial established that appellant and the victim lived in the same apartment building and had a history of arguments over the victim's use of what appellant considered to be his parking space. After work on the night of March 16, 1993, appellant visited a friend who was in the process of completing a firing range, and had loaded and taken along a replica antique black powder pistol, hoping to be able to fire it. Appellant testified that the pistol was the only weapon he owned, that he had only fired it twice in the previous two years since it was given to him, and that he had been told that the only safe way to unload it was to fire it. N.T., 9/16/93, at 119. Appellant testified that it became too dark to fire his pistol at his friend's firing range, and he returned home at approximately 10:00 P.M. When appellant arrived, he found the victim's car in the "spot I usually parked in[.]" Id. at 123. Expecting to be the first to leave in the morning, at approximately 3 A.M., appellant blocked the victim's car with his own, went to his apartment, and fell asleep on the couch, leaving the loaded pistol on the coffee table in front of him. The trial court accurately summarizes the facts leading to the victim's death:

[T]he defendant was awakened from sleeping on his couch by a loud banging on the door of his apartment. He...